John Bellinger on the ICC at 10

by Kevin Jon Heller

In case you missed it, I want to call your attention to an excellent editorial on the ICC written by friend-of-OJ John Bellinger III.  Although John does not support US ratification of the Rome Statute, he argues that the ten-year history of the Court has done much to allay US concerns about it — and that US opposition to the Court has hindered their ability to work together when their interests coincide.  Here is his takeaway:

The court has proved less threatening to U.S. personnel and interests than many Americans first feared. The ICC prosecutor has never charged a U.S. official with war crimes and declined to prosecute offenses allegedly committed by U.S. forces in Iraq. In April he appropriately refused to open an investigation into Israel’s intervention in Gaza in 2008-09. Next month’s anniversary is an appropriate time for Congress to review U.S. policy toward the court and whether the restrictions (including the authorization to invade The Hague) in the American Service-Members’ Protection Act do more harm than good. Although the law contains exceptions and waivers (some of which I negotiated), it has hindered the Bush and Obama administrations from providing some forms of assistance to the court, even in cases for which there is strong bipartisan support for holding war criminals such as Bashir and Kony accountable.

There is very little I disagree with in the editorial, although I think that judging the ICC’s success in terms of the number of trials it has completed is a bit too simplistic.  That statistic misleads more than it informs, because a number of other trials should wrap up in the next couple of years.  (And to be fair, John does note that the Court has brought charges against 28 suspects in total.)  Moreover, it took both the ICTY and ICTR a number of years to complete their first cases, even though they had the full support of the Security Council and had jurisdiction over crimes committed in only one situation.

A couple of weeks ago, Eric Posner published an editorial in the Wall Street Journal, “The Absurd International Criminal Court,” that was little more than a series of misleading cliches strung together with conjunctions.  John’s editorial demonstrates — refreshingly — that it is still possible to have an intelligent discussion about the US’s relationship with the Court.  I hope all readers will check it out.

One Response

  1. The fact that the ICC has not prosecuted any US officials does not mean that those officials did not commit crimes.  That the lack of enforcement is used as a means to allay fears of the US is one more example of our sad state of affairs.  We can all agree that American soldiers died and were wounded in Iraq with some horrendous wounds that will permanently debilitate them.  We can all recognize that they were sent into Iraq under false pretenses by the Bush Administration with things said at the time that they were said that were known by those saying them to be false at that time.  We can note the profound recklessness of all of the intelligence playing around as described in the Senate Intelligence Committee June 5, 2008 report.

    What we are unable to do – with all our power – is to dare ourselves to hold criminally responsible those who did that.  At least not yet. Applauding the  lack of spine of the ICC is applause that warms the heart of those in the political class but it is a sad commentary on us for someone looking at it from Middle America here in Toledo.

    And I have not even spoke of the dead Iraqis, the wounded Iraqis, and the tortured.  I wish the ICC would strike a little fear in the hearts of those who seek all these years to have us acquiesce in their international criminality.


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